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Cox v. Cox

Court of Appeals of Missouri, Western District, Third Division

December 6, 2016

JENNIFER L. COX, Respondent,
WENDELL D. COX, Appellant.

         Appeal from the Circuit Court of Cole County, Missouri The Honorable Daniel Richard Green, Judge

          Before: Alok Ahuja, P.J., Victor C. Howard, and James Edward Welsh, JJ.


         Wendell D. Cox ("Father") appeals the circuit court's judgment dissolving his marriage to Jennifer L. Cox ("Mother"). Specifically, he contests the court's decision to adopt a parenting plan that separates the parties' three children for prolonged periods of time. We affirm.


         In June of 2015, the circuit court held a hearing on Mother's petition for dissolution of marriage. Viewing the evidence in the light most favorable to the judgment, [1] the evidence showed that the parties were married on August 27, 1994, and separated around the time that Mother filed her petition in July 2014. The parties' three children, Zachary, Hadley, and Sophia, were ages 15, 5, and 3, respectively, at the time of the dissolution decree. Prior to the parties' separation, the children lived with Mother and Father at the family home in Tipton. After filing her petition, Mother moved to Sikeston (about five hours away from Tipton), where her extended family lives and where she had obtained a job.

         In August 2014, the circuit court held a hearing on the parties' motions for temporary custody and ordered that Sophia would reside primarily with Mother, and the boys, Hadley and Zachary, would reside primarily with Father. The temporary order also evidently[2] provided for specific periods of temporary custody for each parent. The court ordered no child support. The temporary order remained in place until the dissolution hearing on June 9, 2015. The parties testified at the dissolution hearing that they did not strictly follow the court's temporary order but, instead, allowed the children to spend more time together than what was ordered.

         Both parties submitted proposed parenting plans at trial. Mother proposed that Zachary continue to reside with Father in Tipton and for Hadley and Sophia to reside with her. Mother testified that Father is a good parent and that his work schedule allows him flexibility in parenting the children. She believed, however, that the two youngest children need to live together and that they need to live with her due to their young ages. Mother told the court that Sophia often asks about Hadley and about when she will see him again. Mother acknowledged that Zachary (who was about to enter high school) wanted to continue living Tipton, where he is involved in sports and gets good grades, and she agreed that that would be best for him.

         Father's proposed parenting plan called for all three children to reside with him based on his belief that the siblings need to be together. He pointed to Zachary's testimony that being separated from Sophia has been difficult and that the younger children look up to him. Father testified that he has concerns about Mother's judgment and the impact of her life choices on the children. He noted that Mother is involved in a relationship with Matthew Vaughn (her high school boyfriend), who is incarcerated on a drug charge at the Tipton Correctional Center. Father also complained that Mother has not obtained treatment or medication for her depression, with which she was diagnosed after undergoing a psychological evaluation at Father's behest.

         The circuit court rejected both parties' parenting plans and adopted its own. After making specific findings as to the statutorily required factors, the court awarded the parties "joint legal and physical custody" of the three children. The court's Parenting Plan called for Sophia to have extended parenting time with Mother and for Hadley and Zachary to have extended parenting time with Father, with specific periods of custody of all the children to each parent. In short, the children's living arrangements would be the same as the arrangement with which they had lived for the past year. The court rejected both parties' Form 14s and declined to award child support.


         In his sole point on appeal, [3] Father argues that the circuit court erred in "splitting the custody of the children" by awarding "residential custody" of Sophia to Mother and "residential custody" of Zachary and Hadley to Father, "because there is no substantial weight" (sic) to support the ruling, "the weight of the evidence does not demonstrate the existence of exceptional circumstances warranting separating the children, " and "splitting up the children is contrary to the children's best interest, " in that "the children have lived together for most of their lives, have bonds with each other, miss each other, the parents live five hours apart, [and] Father is a good parent."

         Before we can address the issues raised, we must address the nomenclature employed in this point relied on. First, the court did not award any party "residential custody" of any child. The court awarded joint custody of the children to the parents and devised its own parenting plan. This Court has addressed the necessity of using statutory language on numerous occasions. See, e.g., Loumiet v. Loumiet, 103 S.W.3d 332, 336-38 (Mo. App. 2003) (holding that, despite tendency of courts and lawyers to use such improper terms as "primary residential custody" and "primary physical custody" when "joint physical custody" was awarded, the only types of custody provided for in section 452.375.1(1)[4] are "joint legal, " "sole legal, " "joint physical, " or "sole physical" or "any combination thereof"); see also Robertson v. Robertson, 228 S.W.3d 624, 625 n.1 (Mo. App. 2007); Aurich v. Aurich, 110 S.W.3d 907, 912 (Mo. App. 2003). Recently, the Eastern District of this Court reiterated: "For over ten years, our appellate courts have, without exception, sternly admonished the use of 'primary physical custody.'" Morgan v. Morgan, 497 S.W.3d 359, 366 (Mo. App. 2016). "'[C]ustody, ' as defined . . . does not include 'primary physical custody' as a statutorily permissible physical custodial arrangement, only joint or sole physical custody[.]" Id. (citing Loumiet, 103 S.W.3d at 338). That Court further observed that "[t]he conundrum the foregoing terminology causes [our] courts cannot be overstated." Id. at 367. Neither will the Court be misled by reference to the section 452.375.5(1) designation of a parent's address for mailing and education purposes for a child as a substitute for arguing about "primary or residential custody." See Loumiet, 103 S.W.3d at 339-40. The ultimate issue in this case is whether the parenting time awarded the parties herein is in the best interest of the child. See id. at 340.

         We also find Father's use of the term "split custody" unhelpful in this context.[5] It may be time to relegate the phrase to the dustbin of archaic phraseology with other terms like "primary custody" and "residential custody." See id. at 336-38. These terms cling to life and creep into parenting plans despite statutory irrelevance and this Court's admonition to the contrary.

         Our standard of review for a dissolution of marriage case requires us to affirm the circuit court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).[6] In assessing the sufficiency of the evidence, we examine the evidence and its reasonable inferences in the light most favorable to the judgment, and we disregard all evidence and inferences to the contrary. Durbin v. Durbin, 226 S.W.3d 876, 878 (Mo. App. 2007). The "credibility of witnesses and the weight to be given their testimony is a matter for the trial court, which is free to believe none, part, or all of the testimony of any witness." Noland-Vance v. Vance, 321 S.W.3d 398, 402 (Mo. App. 2010). "We do not reweigh the evidence, even if the evidence could have supported another conclusion." Durbin, 226 S.W.3d at 879.

         In awarding substantial parenting time to both parents, the circuit court necessarily found that both parents are fit and proper persons to exercise joint legal and physical custody with specific periods of custody of all the children to each parent. See In re Marriage of Barton, 158 S.W.3d 879, 884 (Mo. App. 2005). If either parent was "unfit, " the court would not have awarded that parent physical custody of any of the children. See id.

         Father correctly notes that "[a] child's interrelationship and interaction with his or her siblings are relevant factors to consider in custody decisions, " but "those factors must be weighed and balanced in light of an overriding concern for the best interests of the child." See Noland-Vance, 321 S.W.3d at 419; § 452.375.2. Thus, Father acknowledges that a trial court may order substantially different parenting time between the parents of the various siblings if such an arrangement is in the child's best interests, citing Noland-Vance, 321 S.W.3d at 418-20; Durbin, 226 S.W.3d at 880-81; Barton, 158 S.W.3d at 884; Scott v. Steelman, 953 S.W.2d ...

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